Miners' & Merchants' Bank v. Rogers

• Decision Date: 04 March 1907
• Parties: MINERS' & MERCHANTS' BANK v. ROGERS.
• Court: Missouri Court of Appeals

100 S.W. 534

123 Mo. App. 569

MINERS' & MERCHANTS' BANK v. ROGERS.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. APPEAL—REVIEW—GRANT OF NEW TRIAL.

An order granting a new trial, on the ground that the verdict is against the weight of evidence, will be affirmed if there is any substantial evidence against the verdict.

2. PRINCIPAL AND SURETY — DISCHARGE OF SURETY—EXTENSION OF TIME.

A renewal note, in which was included two notes upon which an indorser was liable, does not conclusively extend the time of payment so as to discharge such indorser, since such extension will not discharge the indorser if there be express reservation that it shall not be taken to interfere with the rights and remedies against such indorser.

3. SAME.

Payments of interest in advance upon a note by the principal debtor do not conclusively determine that there has been such an extension of time as will discharge an indorser thereon.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by the Miners' & Merchants' Bank against J. A. Rogers. From an order granting a new trial, defendant appeals. Affirmed.

Edw. J. White, for appellant. H. H. Bloss, for respondent.

ELLISON, J.

This is an action on two promissory notes executed by Ewing & Co., a partnership, and by its individual members, to defendant, Rogers, and by Rogers afterwards indorsed to the plaintiff. A trial was had, which resulted in a verdict for the defendant. On plaintiff's motion, this verdict was set aside and a new trial ordered. From that order, defendant appealed.

The new trial was granted on the ground that the verdict was against the weight of the evidence. The granting of new trials upon that ground is exclusively within the province of the trial court. Appellate courts do not investigate a case on appeal with a view to ascertain which side the weight of the evidence favors. When, therefore, a trial court grants a new trial for the reason that the jury has decided contrary to the weight of the evidence, an appellate court's inquiry is limited to ascertaining if there was any substantial evidence against the verdict, and, if there was, to affirm the order of the trial court. If there is any substantial evidence against the verdict, its weight, when balanced with the evidence in favor of the verdict, must be determined by the trial court. By keeping in view this distinction between the duty and authority of trial and appellate courts, the decision of this appeal is not difficult. By reference to the pleading and the instructions in the cause it will be seen that defenda...